"Shared" Custody is Now Shared Child Custody

Posted on July 06, 2007 01:30am

A potentially radical change to Washington’s custody laws is now on the books. Courts can now determine shared custody of a child regardless of whether his or her parents indicate they will cooperate with the arrangement. Surprised? Anyone who has talked to divorced parents might assume that shared custody agreements, where children spend equal time with each parent, are a given in family courts. But, before July 1, 2007, the rule in Washington was that shared or joint physical custody didn’t really exist.

In reality, Washington State courts have long preferred a sole custody and visitation arrangement, with one parent being the primary custodial parent and the other noncustodial parent having visitation. The noncustodial parent generally spends time with their kids every other weekend. While, Washington courts often call this shared custody the truth is that it is not. Generally the shared custody only covers shared decision making around issues such as non-emergency medical care and public versus private school.

Under Washington State law, true shared custody was only possible under two circumstances: the parents had agreed to shared custody; or, the parents had a history of cooperation and shared parenting, were available to each other, lived in geographic proximity to each other, and shared custody was in the child’s best interests.

Washington’s legislature required one of those two things to be true, went the story, because shared custody required such a high level of cooperation that it was not even possible unless both parents wanted it. Many doubters of this theory would point out that an uncooperative parent can create serious issues with sole custody and visitation arrangements, too, but the remedy has not been to get rid of visitation.

Be that as it may, the rule against allowing one parent to meaningfully litigate for shared custody became known in family law circles, at least informally, as the uncooperative spouse rule. If one parent was not interested in shared parenting, all that parent had to do was not cooperate with the request for shared custody. Perhaps she would threaten to move. Or perhaps he would make himself unavailable. That ability to thwart a shared parenting request, in turn, made every parenting plan a make or break custody case, with the winner taking primary custody and the loser seeing the kids every other weekend. And of course, the parent most likely to be awarded primary custody was the parent most likely to not cooperate with a shared parenting request.

In July of this year, the rules changed. The legislature jettisoned all the language in the statute (RCW 26.09.187) regarding agreement, cooperation, and availability, in favor of what certainly appears to be a much less subject-to-abuse rule:

To establish de facto parentage, the non-biological parent must prove four independent factors to the court:

…[T]he court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time if such provision is in the best interests of the child. In determining whether such an arrangement is in the bests interests of the child, the court may consider the parties’ geographic proximity to the extent necessary to ensure the ability to share performance of the parenting functions. (need to paraphrase)

Reading the above language, the first thing that leaps out is that a Washington judge may now order shared custody if the judge believes it is in the child’s best interests, regardless of how one (or both) of the parents might feel about it.

Sure, the court may consider geographic proximity when determining what is in the child’s best interests, but that appears to be far from the end of the story. Viewed in this context, it is difficult to not consider the change to be anything other than radical.

On the other hand, a judge who has applied the previous statute for the last many years may be unlikely to view the above language as a radical change. Instead, that judge’s preconceived notions of what a child’s best interests require may continue to result in sole custody and visitation arrangements.

So where do we go from here? Just as in other areas of the law, the new statutory language must be litigated so that it can be interpreted. This means, first and foremost, arguing for shared parenting plans at trial and appealing those court decisions that do not award shared custody. Custody determinations remain within the sound discretion of the trial courts. However, getting each division, and ultimately the Supreme Court to interpret and apply the new language, is the best way to keep this important area of the law moving forward.

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